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Allahabad High Court · body

2016 DIGILAW 3011 (ALL)

District Commandant Home Guards v. State of U. P.

2016-09-01

PANKAJ MITHAL

body2016
JUDGMENT Pankaj Mithal, J. – Heard learned Standing Counsel for the revisionist and Sri Alok Kumar Yadav, learned counsel for the respondent no. 2. 2. The revision has been preferred against the judgement and order dated 05.04.1995 decreeing the suit for rent and eviction of the landlord respondent no. 2. 3. The dispute is in respect of a house situate in Azamgarh. Half of the said house on the western side is owned by respondent no. 2 Om Prakash. The other half of the eastern side is owned by his brothers Shree Prakash and Atmaram. The house as a whole is in occupation of the District Commandant, Home Guards and the State of U.P. as the tenants thereof. The rate of the rent of the house as a whole was Rs. 510/- initially and for each of the above portions separately Rs. 255/- per month. 4. The rent of the house as a whole was re-fixed vide order dated 09.11.1990 by the Rent Control and Eviction Officer @ Rs. 1,800/- per month meaning thereby that the rent of the portion owned by the respondent no. 1 was to be Rs. 900/- per month. 5. The respondent no. 2 vide notice dated 12.11.1992, which was served upon the revisionist on 14.11.1992, demanded rent @ Rs. 900/- per month and determined the tenancy. The aforesaid demand was raised as the revisionists defaulted in the payment of rent at the above rate from January, 1992. 6. It is admitted to the parties that the rent of the portion of the respondent no. 2 up to December, 1991 @ Rs. 255/- was duly paid and deposited by the revisionist. 7. On the basis of the above notice, the respondent no. 2 instituted Suit No. 1 of 1993 before the Small Cause Court. The said suit was contested by the revisionist admitting the re-fixation of the rent of Rs. 1,800/- per month by the Rent Control and Eviction Officer. The revisionists stated that there is no default in payment of rent and that the rent at the enhanced rate would also be paid subject to clearance by the higher authorities at Lucknow. 8. The court below framed as many as six issues in the suit and held that the notice dated 12.11.1992 determining the tenancy of the revisionist is valid. 8. The court below framed as many as six issues in the suit and held that the notice dated 12.11.1992 determining the tenancy of the revisionist is valid. The suit before the Small Cause Court is maintainable and that the revisionist has defaulted in the payment of rent @ Rs. 900/- per month w.e.f. January, 1992 and as such is liable for eviction. The decision of Suit No. 24 of 1992 has no impact upon the present proceeding of suit as it was in respect of the default in payment of rent committed by the revisionist prior to 1992 whereas in the present case, the eviction is sought on the ground of default in payment of rent for a period after January, 1992. 9. The submission of learned Standing Counsel is that as there is no default in payment of rent up to December 1991 @ Rs. 255/- per month and the revisionists have not denied payment of rent at the higher rent as fixed by the Rent Control and Eviction Officer w.e.f. January, 1992, but the same could not be paid for want of necessary permission from the higher authorities at Lucknow. There is no justification for decreeing the suit on the ground of default in payment of rent. 10. The only thing which is material for the purpose of the suit is whether the revisionists have deposited the rent or have committed default in its payment. In this regard while dealing issue no. 5 the court below recorded a categorical finding that the revisionists have not deposited any rent @ Rs. 900/- per month for the period demanded and, therefore, payment deposits of rent @ Rs. 255/- per month only would not be sufficient to save them from the finding of default. Accordingly, the revisionists were held liable to be evicted. 11. There is no material on record to establish that the revisionist from January, 1992 onwards ever deposited rent @ of Rs. 900/- per month, which clearly establishes that they have committed default in payment of rent. 12. The question whether the revisionist has received the permission to pay/deposit rent at the enhance rent of Rs. 900/- per month is not a material. 13. In view of the above, there is no error or illegality in the finding of default recorded by the court below. 14. 12. The question whether the revisionist has received the permission to pay/deposit rent at the enhance rent of Rs. 900/- per month is not a material. 13. In view of the above, there is no error or illegality in the finding of default recorded by the court below. 14. The revisionist have not claimed or demanded the benefit of Section 20 (4) of the Act nor any material was brought on record to establish that the entire arrears of rent interest and the costs of notice etc. was deposited by them on the first date of hearing in compliance of sub Section 4 of Section 20 of the Act. In the absence of any such pleading or material, the court below was not called upon to consider the issue of extending the benefit under Section 20 (4) of the Act. 15. In view of the aforesaid facts and circumstances, there is no merit in this revision and the same is dismissed. Revision dismissed.